Cost to Jasper over power plant lawsuit revealed

The City of Jasper’s defense in the lawsuit filed by Healthy Dubois County, Inc. in August of 2011 has cost city utility ratepayers over half a million dollars so far.

The city has paid Bingham Greenebaum Doll, LLP, the firm representing the city, $514,547 on a nearly monthly schedule over the course of the 25 month litigation. These payments are made by the city’s electric utility through a special account funded by ratepayers’ utility payments.

On August 5, 2011, the Jasper Council and Utility Service Board approved the lease agreement with Twisted Oak in a joint special meeting. Twisted Oak Corporation, founded in 2003, is a firm from Atlanta, GA, interested in converting the Jasper power plant from a coal-fired power plant to a biomass power plant.

Dr. Norma Kreilein, Rock Emmert, and Healthy Dubois County, Inc. (HDC), a grassroots organization composed of local citizens concerned about the health and economic impact of a biomass burning power plant being developed in Jasper, filed the original lawsuit concerning alleged violations of Indiana’s Open Door Law August 5, 2011. After the hearing in December of 2011, special judge Lucy Goffinet ruled in favor of the City of Jasper.

Bingham Greenebaum Doll LLP had billed the city 722.80 hours at a cost of $190,952.50 to get to this point.

HDC filed an appeal, and a three judge panel of the Indiana State Appeals Court reversed Goffinet’s decision based on several factors including questioning the members of a group of volunteers who met to work out essential details concerning the contract with Twisted Oak. In the ruling by the appellate court, HDC was allowed to depose members of this controversial volunteer group that met without public scrutiny about 12 to 15 times during negotiations with Twisted Oak CEO Jay Catasein.

The firm billed 436.7 hours from January 3, 2012 to January 3, 2013, the timeframe it took to get through the appeal, for a total of $109,081.00.

Since January 3, 2013, the city has paid Bingham Greenebaum Doll, LLP an additional $214,513. 50 for 691.9 hours of work in preparation for the second trial scheduled for January 16 and 17 of 2014.

Besides advising the city in its defense, Bingham Greenebaum Doll assists the city in several other areas including: vetting documents regarding the lease and the volunteer group at the heart of the appeal before releasing them to HDC’s counsel; representing members of the volunteer group and city employees during depositions’ providing the city council and Utility Service Board with updates as the lawsuit progresses; and Bingham Greenebaum Doll will also be deposing members of HDC.

Recently, over 12,000 documents were released to HDC’s lawyer, Too Keller, who is with the firm Keller Macaluso, LLC of Carmel, IN.

According to City Attorney Renee Kabrick, whose office is responsible for collecting and vetting the documents before they are released to HDC or any other entity, the requests about the power plant lease agreement and lawsuit comprise the vast majority of the information requests received by the city. “From my perspective for the most recent records requests, it takes a lot of time to compile,” Kabrick stated.

Kabrick and her department’s legal assistant, Valerie Cockerman, are responsible for reviewing the documents for privileged information before they are provided to any outside source. “Writing a check for legal fees is easy to calculate,” Kabrick said, “When it comes to compiling the data, that is just my time and my assistant’s time, that doesn’t take into account the amount of time it took for every member of the Utility Service Board, every member of the council, staff members who are affected, managers who are affected, to go back through and look at all their emails or all of their files to compile their information. Then I go through it or I forward it to Bill’s (Kaiser) office (Bingham Greenebaum Doll, LLP). There is a lot of time consumed every time we get one of these fishing expedition request for records.”

The city is requesting a summary judgement from Judge Gilmore in regards to what information the city has to provide to HDC —information about the executive sessions or the volunteer group sessions. The city says the information about the volunteer group is the only thing applicable under the appellate court’s ruling. The summary judgement is scheduled for October 16.

Little has been done with the power plant since the lawsuit was filed in August of 2011. The city has complained that it has not received any of the quarterly lease payments from Catasein since the lease was approved and signed in December of 2011, but they approved a resolution then to relieve Catasein of the obligation of those lease option payments until the lawsuit was resolved.

HDC’s ultimate goal is the abandonment of the power plant biomass conversion, and they have stated publicly that no settlement offer would be accepted if it did not include that stipulation. From an earlier story concerning the recent settlement offer made by HDC, Dr. Norma Kreilein provided this statement. “While Jasper officials have been blaming HDC and its Open Door Lawsuit for their ills, perhaps potential partners and purchasers realize the liability and risky business plan that Jasper refuses to acknowledge. While government transparency is still a critical issue, as informed, educated citizens, we firmly stand by our allegations and find that although our treatment by city officials was demeaning and deplorable, the necessity of the lawsuit specifically to oppose the biomass plant appears to be lessening. We offered a settlement because it was the right thing to do, just as opposing the plant and filing the lawsuit were and are the right thing to do. We are waiting for Jasper officials to represent all citizens, not just their own interests.”

HDC contends that no amount of money is worth the lives of those who could be adversely affected by the pollution released through the burning of miscanthus and natural gas. A peer reviewed article released by Dr. Kristin Shrader-Frechette, Department of Biological Sciences and Department of Philosophy, the University of Notre Dame, predicted 40 deaths (compared to 2 from coal), 75 heart attacks, 730 asthma attacks, and greater than 4000 lost work days annually from the Jasper Clean Energy Center. In the study, Dr. Shrader-Frechette stated the particulates released would “cause undeserved family tragedies and cause annual losses of $110 and $220 million” for the ratepayers.

According to Wayne Schuetter, the city will continue to defend itself and not abandon the biomass conversion. “That (the lease) is not part of the litigation,” he said about the lawsuit and recent settlement offer from HDC requiring the city to abandon the project. “To me that is trying to slip something in that is not part of it. We are saying we did not violate the open door law, we have a standing lease agreement; we aren’t going to throw that out because someone has sued us over the open door law.”

HDC has not commented on the amount they have spent in the lawsuit against the city. However, they announced in July that the Indiana Utility Rate Payers Trust had awarded the organization a sizeable grant for its efforts in the open door lawsuit.